Defending the Deposition of Developmentally Disabled Client

Representing a developmentally disabled (DD) client brings considerations beyond what we typically encounter. This post discusses representation in the context of the DD client’s deposition.

DD Defined. RCW 71A.10.020(4) provides in part: “Developmental disability” means a disability attributable to an intellectual disability…[which] originates before the individual attains age eighteen, which has continued or can be expected to continue indefinitely, and which constitutes a substantial limitation to the individual.”

Competent to Testify. The DD client is competent to testify so long as he is capable of speaking the truth, receiving an accurate impression of it, has sufficient memory to retain it, has the capacity to express it in words, and can understand simple questions about it. Understanding and answering simple questions is key when the DD client must be examined. In a deposition we have competing issues-the right to conduct legitimate discovery verses the right to protect our DD client from discovery abuse.

Protective Order. The discovery tool for protecting the DD client is the CR 26(c) Protective Order. While some lawyers may prefer to have a protective order prior to the deposition, here we assume a deposition prior to a protective order. In this way we define the scope of the deposition by using what we call the “Close the Door Method.”

Witness Preparation. For the DD client preparation is minimal. First hear the key elements of the story. Do not rehash the story. Tell the DD client the lawyer on the other side will ask questions about what happened: “Listen to the question.” “Answer the question.” “Always tell the truth.”

Open and Close Door. We must allow opposition to engage in legitimate discovery. We must leave the door open so long as this is occurring. Once an area has been explored, we are confident the record reveals this, and further inquiry is oppressive, we close the door as follows:

CR 26 (i) Conference. With the DD client out of the room we begin a separate record: “Pursuant to Cr 26(i) counsel must confer before the court will entertain any motion or objection regarding rules 26 through 37. This is a CR 26(i) conference.”

Court has Discretion to Protect. “While [DD Client] is competent to testify he is developmentally disabled. Pursuant to CR 27(a)(2) the court shall make such order as appropriate for the protection of the developmentally disabled party. Additionally as his attorney I have an obligation to protect [my client] from discovery abuse.”

CR 30(d). “An instruction not to answer is proper when made pursuant to CR 30(d).” “Pursuant to CR 30(d), at any time during the taking of a deposition upon a showing the examination is being conducted in such a manner as to unreasonably annoy, embarrass, or harass the party the court may order the deposition cease.” “Upon demand of the objecting party the deposition shall be suspended for the time necessary to make a CR 26(c) protective order motion.”

CR 26(c). “The court may make an appropriate order to protect a party from annoyance, embarrassment, or oppression. At this point in the deposition further questions concerning [area where we are closing door] constitute oppression [of DD Client].”

Instructing Not to Answer. “I am instructing you [my client] will not answer further questions (set forth area[s] where you are closing the door as you are confident the judge will grant a protective order prohibiting further discovery). I am doing this outside of his presence because I do not want to chill further legitimate discovery.”

Your Choice Counsel. “Counsel if you chose we will proceed to court now to discuss a protective order. Alternatively, continue to explore other areas of discovery. If you deem it necessary to seek further discovery into the area I am instructing my client not to answer we can cooperate on scheduling a protective order hearing at a later date.”